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Bruckerhoff v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

March 20, 2017

NANCY A. BERRYHILL Acting Commissioner of Social Security, [1]Defendant.



         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner denying the application of Lloyd Bruckerhoff (“Plaintiff”), a now-55 year-old resident of Missouri, for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401 et seq. Plaintiff has filed a brief in support of the Complaint (Doc. No. 19) and Defendant has filed a brief in support of the Answer (Doc. No. 29). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. No. 14).


         Plaintiff filed his application for DIB, which was initially denied on September 16, 2013. (Tr. 100-104; 88-96). The initial denial was accompanied by a Disability Determination Explanation signed by single decision maker (“SDM”) Kimberl Underwood (Tr. 88-96). Plaintiff then filed a written Request for Hearing before an Administrative Law Judge (“ALJ”) on September 30, 2013 (Tr. 105). A hearing was then held on September 19, 2014 in front of ALJ Carol L. Boorady. (Tr. 24-87). On September 25, 2014, the ALJ issued a written decision in which she found Plaintiff not disabled. (Tr. 9-19). Plaintiff requested a review of the decision by the Appeals Council on October 6, 2014. (Tr. 5). The Appeals Council denied Plaintiff's request for review (Tr. 1-4). As such, the ALJ's decision stands as the final decision of the Commissioner.


         The ALJ determined that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2017, and had not engaged in substantial gainful activity since March 29, 2013. (Tr. 11). The ALJ found Plaintiff has the severe impairments of “degenerative disc disease of the lumbar spine, osteoarthritis of the knees (worse on the right side), obesity and diabetes mellitus” but that no impairment or combination of impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 11-13).

         After considering the entire record, the ALJ determined Plaintiff has the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b). (Tr. 13). Specifically, she found that Plaintiff retained the capacity to occasionally lift up to 20 pounds, frequently lift up to ten pounds, walk or stand for six hours of an eight-hour workday, and sit for six hours in an eight-hour workday. Id. The ALJ further determined that Plaintiff could perform work that required minimal (“defined as less than occasional”) or no stooping, kneeling, crouching, crawling or climbing on ramps or stairs. Id. Finally, the ALJ stated that Plaintiff should avoid exposure to vibration, unprotected heights and dangerous moving machinery. Id.

         At the hearing, the ALJ used this RFC and variations upon it to pose hypothetical questions to Carly Cochran, a vocational expert, regarding the availability of jobs for someone similarly limited. (Tr. 58-83). Specifically, the ALJ asked Ms. Cochran whether there were jobs which Plaintiff could perform, given his age, education, and work experience, combined with the RFC described above and variations such as only standing four hours a workday or no stooping or kneeling. Ms. Cochran answered that there were such jobs, and based on the RFC as formulated, Plaintiff was able to perform jobs such as cashier. (Tr. 60). She further testified as to how many jobs in those categories existed at that time, both nationally and in Missouri. Id.

         In her decision, the ALJ found Plaintiff unable to perform any past relevant work as a carpenter. (Tr. 17). However, the ALJ did find that there are jobs that exist in significant numbers in the national economy that he can perform, including the above-mentioned “cashier”, which Ms. Cochran testified were available at a rate of 30, 000 jobs in the State of Missouri and 1.3 million jobs nationally. (Tr. 18, 60). Thus, the ALJ concluded that a finding of “not disabled” was appropriate. (Tr. 18-19).

         Plaintiff has come to this Court to appeal this ruling, arguing that the ALJ “failed to properly evaluate opinion evidence” (primarily in discounting the medical source statement of treating physician Jeremy Talley, DO). (Doc No. 19 at 3). He also alleges that the ALJ “failed to properly consider credibility” of Plaintiff's allegations regarding his subjective limitations. (Id. at 13). For the following reasons, the Court finds that the ALJ's determination was supported by substantial evidence. Plaintiff was not fully credible as to his subjective pain complaints, as evidenced by the general lack of corroboration by objective diagnostic testing, Plaintiff's own testimony of his activities, including his delay or unwillingness in seeking anything more than the most basic medical treatment, and his efforts to seek employment after the alleged date of onset. The Court further finds that the ALJ's discounting of the weight of Dr. Talley's opinion was supported by substantial evidence, as Dr. Talley's opinion was based largely upon Plaintiff's subjective reports which the ALJ found not fully credible.


         Under the Social Security Act, the Commissioner has established a five-step process for determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is determined to be not disabled.'” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as “any impairment or combination of impairments which significantly limits [claimant's] physical or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may be terminated at step two only when the claimant's impairment or combination of impairments would have no more than a minimal impact on [his or] her ability to work.'” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).

         Third, the ALJ must determine whether the claimant has an impairment which meets or equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is per se disabled without consideration of the claimant's age, education, or work history. Id.

         Fourth, the impairment must prevent the claimant from doing past relevant work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ will review a claimant's RFC and the physical and mental demands of the work the claimant has done in the past. 20 C.F.R. § 404.1520(f).

         Fifth, the severe impairment must prevent the claimant from doing any other work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the Commissioner has the burden of production to show evidence of other jobs in the national economy that can be performed by a person with the claimant's RFC. Steed, 524 F.3d at 874 n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate RFC remains on the claimant, even when the burden of production shifts to the Commissioner at step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ's decision, the decision must be affirmed if it is supported by substantial evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).

         It is not the job of the district court to re-weigh the evidence or review the factual record de novo. Cox, 495 F.3d at 617. Weighing the evidence is a function of the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). Thus, an administrative decision which is supported by substantial evidence is not subject to reversal merely because substantial evidence may also support an opposite conclusion or because the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.

         To determine whether the Commissioner's final decision is supported by substantial evidence, the court is required to review the administrative record as a whole and to consider:

(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the ...

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